Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Category Archives: Competition

Subscribe to Competition RSS Feed

This Week at the SCC (01/11/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Competition, This Week at the SCC

The Supreme Court of Canada released judgments in three cases and denied leave to appeal in one case of interest to Canadian businesses and professions.

In a trilogy of cases (Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Sun-Rype Products Limited v. Archer Daniels Midland Company, 2013 SCC 58  and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59)  the Supreme Court of Canada recognized the right of indirect purchasers to assert competition claims while confirming its rejection of the “passing on” defence in this context.… Continue Reading

Supreme Court Releases the Indirect Purchaser Trilogy

Posted in Class Actions, Competition

The following article by Sarah Corman and Shaun Finn may be of interest to readers of this blog:

Supreme Court Releases the Indirect Purchaser Trilogy

In an important trilogy released October 31, 2013, the Supreme Court of Canada recognized the right of indirect purchasers to assert competition claims while confirming its rejection of the “passing on” defence in this context. Read more.… Continue Reading

What will Justice Nadon’s appointment bring to the Supreme Court?

Posted in Aboriginal, Administrative, Charter of Rights, Class Actions, Competition, Intellectual Property, Tax

Background

Earlier this week, the Prime Minister surprised many Supreme Court-watchers by nominating the Honourable Marc Nadon to replace Justice Fish at the Supreme Court of Canada. Given this recent appointment, the Canadian Appeals Monitor has taken a look at Nadon J.’s jurisprudential legacy to date and identified key cases which illustrate his judicial leanings, especially as it applies to Canadian businesses and professions. The Canadian Appeals Monitor has also looked at some of the cases that Nadon has argued to get better insights into what kind of judge he is likely to be in the Supreme Court. 

Continue Reading

Back to Class on Class Arbitrations: What About Economic Feasibility?

Posted in Case Comments, Competition, Procedure

What happens when the parties to an arbitration agreement expressly contract out of the possibility of proceeding to a class arbitration, and this means that plaintiffs will have to incur great expense to each make proof of their claim individually, well above the amounts they may obtain as a result of their proceedings? Should a court not interfere and decide to hear the dispute because “effective vindication” could not be attained through arbitration? This was the question put to the Supreme Court of the United States in American Express Co. v. Italian Colors Restaurant (June 20, 2013). The six justices

Continue Reading

Click Here to Win a Million Dollars!: The Australian High Court Considers Whether Online Intermediaries are Liable for Displaying Misleading or Deceiving Advertisements

Posted in Administrative, Case Comments, Communications, Competition

Online advertising is big business. It is estimated that $92 billion was spent worldwide last year, and forecasters expect that number to reach $143 billion by 2017. But to what extent are the distributers of online advertisements responsible for their content? That was the question considered by the Australian High Court in Google Inc v Australian Competition and Consumer Commission. In a decision that is sure to have implications in Canada, the High Court decided that Google is not relevantly different from traditional advertisement intermediaries such as newspaper publishers or broadcasters and is therefore not responsible for misleading or … Continue Reading

The Second Opinion: Restrictive Covenants at the Ontario Court of Appeal

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Competition, Contracts, Corporate Law, The Second Opinion

The Ontario Court of Appeal has released an important new judgment concerning the enforceability of restrictive covenants: Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72.  The decision provides guidance about when a restrictive covenant will be unenforceable owing to its duration and the scope of its prohibited activities, and suggests that a different test for unenforceability will apply where the existence of the covenant is linked to the covenantor’s interest in a limited partnership as opposed to a corporation.

The facts in Martin were as follows.  The plaintiff/appellant Martin acquired  minority interests in the two defendant/respondent companies … Continue Reading

Consumer Class Actions: BCCA Limits Availability of “Waiver of Tort” Claims but Expands Jurisdictional Reach in Conspiracy Claims

Posted in Case Comments, Class Actions, Competition, Manufacturing, Torts

Introduction

The SCC recently dismissed two leave applications from important (but unrelated) decisions of the BCCA in the consumer class action realm. One decision, in a rather noteworthy step, engages in an extensive analysis of and narrows the availability of the “waiver of tort” doctrine in claims based on alleged breaches of consumer protection type legislation.

The second decision is significant from a jurisdictional point of view and also because it ties in with certain potentially pivotal cases on indirect purchasers which will be heard by the SCC later this year. It permitted a class action alleging a competitive conspiracy … Continue Reading

Do Equitable Ends Justify Expanding “Unlawful Means”? The Supreme Court of Canada Grants Leave in A.I. Enterprises Ltd. v. Bram Enterprises Ltd.

Posted in Case Comments, Class Actions, Competition, Contracts, Insurance, Procedure, Torts

Introduction

The Supreme Court has granted to leave to appeal in a case that has the potential to elucidate an area of tort law where confusion has reigned for far too long. In the words of the House of Lords, “the law in this area is a mess.” The subject that has engendered this confusion is the scope of the “unlawful means” element in the economic torts, and in particular, in the torts of intentional interference with economic interests and intentional interference with contractual relations.

Continue Reading

FCA Narrows the Limitation Period Defence in Civil Competition Act Claims

Posted in Case Comments, Class Actions, Competition, Procedure

Introduction

The Federal Court of Appeal has ruled that the “ongoing effects” of a conspiracy do not extend the applicable limitation period for the purposes of a civil action brought under section 36(1) of the Competition Act for a criminal conspiracy contrary to section 45(1). The Court of Appeal’s affirmation of the lower Court’s decision also suggests that the “ongoing damage” caused by the conspiracy does not extend the limitations period either. Instead, the limitations period starts at the latest when the plaintiff first becomes aware of the acts constituting the breach of the Act, and possibly even earlier, as … Continue Reading